Cann v. The Rector, Wardens and Vestrymen of Church of Redeemer of City of St. Louis

• Citation: 85 S.W. 994,111 Mo.App. 164
• Parties: CANN and SWITZER, Appellants, v. THE RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE REDEEMER OF THE CITY OF ST. LOUIS and TROTMAN, Respondents
• Decision Date: 21 February 1905
• Court: Court of Appeal of Missouri (US)

85 S.W. 994

111 Mo.App. 164

CANN and SWITZER, Appellants, v. THE RECTOR, WARDENS AND VESTRYMEN OF THE CHURCH OF THE REDEEMER OF THE CITY OF ST. LOUIS and TROTMAN, Respondents

Court of Appeals of Missouri, St. Louis

February 21, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

STATEMENT.

The plaintiffs are partners and the defendant church is a body incorporated under the name of Rector, Wardens and Vestrymen of the Church of the Redeemer of the City of St. Louis. The defendant, Charles A. Trotman, is president of the vestry and rector of the church. Originally some of the vestrymen were made defendants; but at the outset of the trial a dismissal was entered against every one except the corporation itself and the rector. At the same time the plaintiffs waived and abandoned any claim for damages resulting from the defendant's having refused to go on with the construction of the building, which claim was laid in the following paragraph of the petition:

"And that by reason of the failure of defendant to carry out the contract with plaintiffs, plaintiffs have been damaged in the sum of one and one-half (1 1-2) per cent of one hundred and twenty-three thousand seven hundred ($ 123,700) dollars, or the sum of one thousand eight hundred and fifty-five dollars and fifty cents ($ 1,855.50)."

The answer of the corporation averred that at the time the written contract between the plaintiffs and it was made, the former were instructed that the plans and drawings to be prepared by the plaintiffs should be such that the costs of the basement of the house to be erected in conformity to them, should not exceed nine thousand dollars and the cost of the entire building not exceed sixty thousand dollars; that contrary to this instruction plaintiffs prepared plans and specifications for a building whose basement would cost not less than twenty-seven thousand dollars and the entire edifice not less than one hundred and twenty-three thousand seven hundred dollars. Said instruction is averred to have been a part of the contract between the church corporation and plaintiffs. Another defense stated is, that the plans specifications and detailed drawings which plaintiffs were to prepare, should be satisfactory to the defendant corporation; whereas, those prepared were not satisfactory, and, therefore, were refused. The same defense is stated in another count with the additional averment that the reason the plans, specifications and drawings were not satisfactory was the great cost of building in conformity to them. The individual defendants answered by a general denial and plaintiffs' reply to the answer of the corporation was a general denial.

The written contract between the parties was as follows:

"This agreement made this 1st day of December, in the year Nineteen Hundred and Two, by and between Cann & Switzer, architects, parties of the first part (hereinafter designated the architects), and Charles A. Trotman, president of the Vestry Building Committee and Agents of the Church of the Redeemer, parties of the second part (hereinafter called the owners).

"Witnesseth: That the architects in consideration of the fulfilment of the agreement herein made with the owners agree with said owners as follows:

"Article 1. The architects under the direction and to the satisfaction of owners shall and will provide all plans, specifications and detail drawings as may be necessary and proper for the erection and completion of a church building to be known as The Church of the Redeemer, located on the corner of Euclid and Washington avenues, St. Louis, Missouri. Said architects are to procure from builders and contractors estimates for the construction of said building and by and with the consent of said owners to let contracts for same and to superintend the work and construction of said building and to issue certificates and vouchers for the payment of contractors or others entitled to such payments in accordance with the terms of their respective contracts.

"Article 2. It is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the architects for said services shall be paid as follows: two and one-half per cent for plans, specifications, details and making contracts, one and one-half per cent for superintending the construction of said building; said commission shall be paid in current funds by the owners to the architects in installments as follows: two and one-half per cent of the cost of foundation when plans are completed and contract for the foundation is let, the balance of commission for plans and specifications to be paid when the entire plans and specifications are finished and contract let for the superstructure. The owners shall pay to the architects in installments as follows: for services for superintending one and one-half per cent of the cost of the building as the work progresses.

"Article 3. The said parties for themselves, their heirs, executors, administrators and assigns do hereby agree to the full performance of the covenants herein contained.

"In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

THE CHURCH OF THE REDEEMER,

By CHARLES A. TROTMAN,

President of the Vestry.

W. A. CANN, HENRY SWITZER,

Architects."

The rector of the Church of the Redeemer, Rev. Charles A. Trotman, was the agent of the corporation or vestry in connection with the erection of the contemplated edifice; but the scope of his authority is in dispute. The respondent contends he had no authority except to sign the written contract with the architects; but the appellants say he was given full authority to instruct the architects in regard to the kind of an edifice they should prepare plans and specification for, and that they followed his instructions, he being fully apprised concerning the cost of an edifice to conform to their work. As originally recorded the minute of the authority conferred on Dr. Trotman at the meeting of December first appears below in connection with a quotation from the secretary's testimony.

All the evidence before us was introduced by the plaintiffs, who were denied a submission to the jury at the conclusion of their case. This evidence contains nothing to prove the allegation of the answer that plaintiffs were employed to build a church to cost sixty thousand dollars and its basement nine thousand dollars, except one circumstance: the plaintiff Switzer was a member of the Church of the Redeemer and as he was an architect, when the building of a new church was first under consideration, the rector talked with him about it and, at the rector's request, he prepared a pencil sketch of a building to cost the sums last stated. This was done without compensation, and simply as a favor to the rector, Switzer having no intention then of engaging to draw plans and specifications for the intended building; in fact he said he did not want the job. Moreover, when this pencil sketch was prepared the cost of building in St. Louis was one-third less than it was when bids were taken on the plans and specifications. Afterwards Switzer and his partner Cann were pressed to prepare plans, drawings and specifications and were assured that their employment would be treated as a business transaction and they would be paid for their work. With this assurance they entered into the written contract with the defendant church and gave several months' time to the preparation of the plans in question. That this work was done under the supervision and according to the instructions of the rector, Rev. Charles A. Trotman, and that he understood the building would cost considerably above sixty thousand dollars, there can be no doubt on the evidence before us. Dr. Trotman said he wanted a building which would be a credit to St. Louis and built somewhat after the fashion of Episcopal churches in England. He took one of the architects to the cathedral at the corner of Thirteenth and Locust streets and indicated that he wanted plans for a house like that edifice in a general way. He said he desired a church as good as several other churches in the city, which he designated, and was going to have it regardless of cost. A departure from the original pencil sketch planned by Switzer was selecting "stock brick" as the chief material to be used in the building, which would considerably increase the cost. While Cann and Switzer were at work on the drawings, which were prepared under his eye, so to speak, the rector gave instructions and directed alterations from time to time. One change in the specifications as drawn by them which was made at his request, was requiring that the brick be laid in Portland cement instead of mortar, a change which would increase the cost of the building from seven to ten thousand dollars. He cut out a third row of columns called for by the plans as drawn, though thereby the cost of construction would be increased on account of the greater length of the girders required. He also directed some other expensive changes. Cann and Switzer drew their plans and specifications to suit him, and while the work was in progress, and after it was completed, it met his approval. Bids were taken for construction by the architects and the lowest was $ 123,700. The plans, specifications and drawings were retained by Dr. Trotman and the vestry from six weeks to two months after receiving them, before April 6, 1903, when final action was taken on them. It is in testimony that none of the vestry objected meanwhile to the work of the plaintiffs, but some of them, at least, acquiesced in it, and that two months before the plans were rejected a...